Exhibit 1.1
XXXX-XXXX REALTY, L.P.
UNDERWRITING AGREEMENT
----------------------
December 21, 2000
First Union Securities, Inc.
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
Each of Xxxx-Xxxx Realty, L.P., a Delaware limited partnership (the
"Operating Partnership") and Xxxx-Xxxx Realty Corporation, a Maryland
corporation qualified as a real estate investment trust and the general partner
of the Operating Partnership (the "Company") hereby confirms its agreement with
First Union Securities, Inc. (the "Underwriter"), as set forth below.
1. SECURITIES. Subject to the terms and conditions herein contained,
the Operating Partnership proposes to issue and sell to the Underwriter certain
securities of the Operating Partnership identified in Schedule 1 hereto (the
"Securities").
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Each of the
Company and the Operating Partnership represents and warrants to, and agrees
with, the Underwriter that:
(a) Each of the Operating Partnership and the Company meets the
requirements for use of Form S-3 under the Securities Act of 1933, as amended
(the "Act"). A registration statement (the file number of which is set forth in
Schedule 1 hereto) on such Form with respect to the Securities, including a base
prospectus, has been filed by the Operating Partnership and the Company with the
Securities and Exchange Commission (the "Commission") under the Act, and one or
more amendments to such registration statement may also have been so filed. Such
registration statement, as so amended, has been declared by the Commission to be
effective under the Act and no stop orders suspending the effectiveness of such
registration statement has been issued under the Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Operating Partnership or the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information has been
complied with. Such registration statement, as amended at the date of this
Agreement as specified in Schedule 1 hereto, meets the requirements set forth in
Rule 415(a)(1)(x) under the Act and complies in all other material respects with
said Rule. The Operating Partnership will next file with the Commission either
(A) if the Operating Partnership relies on Rule 434 under the Act, a Term Sheet
(as hereinafter defined) relating to the Securities, that shall identify the
Preliminary Prospectus (as hereinafter defined) that it supplements and, if
required to be filed pursuant to Rules 434(c)(2) and 424(b), an Integrated
Prospectus (as hereinafter defined), in either case, containing such information
as is required or permitted by Rules 434, 430A, and 424(b) under the Act or (B)
if the Operating Partnership does not rely on Rule 434 under the Act, pursuant
to Rule 424(b) under the Act a final prospectus supplement to the base
prospectus included in such registration statement, as so amended, describing
the Securities and the offering thereof, in such form as has been provided to,
or discussed with, and approved by the Underwriter as provided in section 4((a))
of this Agreement. As used in this Agreement, the term "Registration Statement"
means such registration statement, as amended at the time when it was declared
effective, including (i) all financial schedules and exhibits thereto, (ii) all
documents incorporated by reference or
deemed to be incorporated by reference therein and (iii) any information omitted
therefrom pursuant to Rule 430A under the Act and included in the Prospectus (as
hereinafter defined) or, if required to be filed pursuant to Rules 434(c)(2) and
424(b), in the Integrated Prospectus; the term "Base Prospectus" means the
prospectus included in the Registration Statement; the term "Preliminary
Prospectus" means any preliminary form of the Prospectus (as defined herein)
specifically relating to the Securities, in the form first filed with, or
transmitted for filing to, the Commission pursuant to Rule 424 of the Rules and
Regulations; the term "Prospectus Supplement" means any prospectus supplement
specifically relating to the Securities, in the form first filed with, or
transmitted for filing to, the Commission pursuant to Rule 424 under the
Securities Act; the term "Prospectus" means: (A) if the Operating Partnership
relies on Rule 434 under the Act, the Term Sheet relating to the Securities that
is first filed pursuant to Rule 424(b)(7) under the Act, together with the
Preliminary Prospectus identified therein that such Term Sheet supplements; (B)
if the Operating Partnership does not rely on Rule 434 under the Act, the
Preliminary Prospectus; or (C) if the Operating Partnership does not rely on
Rule 434 under the Act and if a prospectus is required to be filed pursuant to
Rule 424 under the Act, the Base Prospectus, including, in each case, the
Prospectus Supplement; "Base Prospectus," "Prospectus," "Preliminary Prospectus"
and "Prospectus Supplement" shall include in each case the documents, if any,
filed by the Operating Partnership with the Commission pursuant to the United
States Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference therein; the term "Integrated Prospectus" means a
prospectus first filed with the Commission pursuant to Rules 434(c)(2) and
424(b) under the Act; and the term "Term Sheet" means any abbreviated term sheet
that satisfies the requirements of Rule 434 under the Act. Any reference in this
Agreement to an "amendment" or "supplement" to any Preliminary Prospectus, the
Prospectus, or any Integrated Prospectus or an "amendment" to any registration
statement (including the Registration Statement) shall be deemed to include any
document incorporated by reference therein that is filed with the Commission
under the Exchange Act after the date of such Preliminary Prospectus,
Prospectus, Integrated Prospectus or registration statement, as the case may be.
For purposes of the preceding sentence, any reference to the "effective date" of
an amendment to a registration statement shall, if such amendment is effected by
means of the filing with the Commission under the Exchange Act of a document
incorporated by reference in such registration statement, be deemed to refer to
the date on which such document was so filed with the Commission; any reference
herein to the "date" of a Prospectus that includes a Term Sheet shall mean the
date of such Term Sheet.
(b) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus. When any Preliminary Prospectus was filed
with the Commission it (i) contained all statements required to be stated
therein in accordance with, and complied in all material respects with the
requirements of, the Act, the Exchange Act and the respective rules and
regulations of the Commission thereunder and (ii) did not include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. When the Registration Statement or any
amendment thereto was or is declared effective, it (i) contained or will contain
all statements required to be stated therein in accordance with, and complied or
will comply in all material respects with the requirements of, the Act, the
Exchange Act and the respective rules and regulations of the Commission
thereunder and (ii) did not or will not include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading. When the Prospectus or any Term Sheet that is
a part thereof or any Integrated Prospectus or any amendment or supplement to
the Prospectus is filed with the Commission pursuant to Rule 424(b), on the date
when the Prospectus is otherwise amended or supplemented and on the Closing Date
(as hereinafter defined), each of the Prospectus and, if required to be filed
pursuant to Rules 434(c)(2) and 424(b) under the Act, the Integrated Prospectus,
as amended or supplemented at any such time, (i) contained or will contain all
statements required to be stated therein in accordance with, and complied or
will comply in all material respects with the requirements of, the Act and the
Exchange Act and the respective rules and regulations of the Commission
thereunder and (ii) did not or will not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The foregoing provisions of this paragraph (b) do not
apply to (x) statements or omissions made in any Preliminary Prospectus or any
amendment or supplement thereto, the Registration Statement or any amendment
thereto, the Prospectus or, if required to be filed pursuant to Rules 434(c)(2)
and 424(b) under the Act, the Integrated Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the Company or the Operating Partnership by the Underwriter
specifically for use therein and (y) that part of the Registration Statement
which constitutes the
-2-
Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of 1939, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Trust Indenture Act") of the Trustee (as defined
in Schedule 1 hereto).
(c) The Operating Partnership has been duly organized and is validly
existing as a limited partnership in good standing under the laws of the State
of Delaware and is duly qualified to transact business and is in good standing
under the laws of all other jurisdictions where the ownership or leasing of its
properties or the conduct of its business requires such qualification, except
where the failure to be so qualified does not amount to a material liability or
disability to the Operating Partnership and its subsidiaries, taken as a whole.
(d) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Maryland and is duly
qualified to transact business and is in good standing under the laws of all
other jurisdictions where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the failure to
be so qualified does not amount to a material liability or disability to the
Company and its subsidiaries, taken as a whole. The Company is the sole general
partner of the Operating Partnership.
(e) Each of the subsidiaries of the Operating Partnership and the
Company (the "Subsidiaries") has been duly organized and is validly existing as
a general or limited partnership or corporation in good standing under the laws
of the jurisdiction of its organization, and is duly qualified to transact
business and is in good standing under the laws of all other jurisdictions where
the ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so qualified does
not amount to a material liability or disability to the Operating Partnership
and its subsidiaries, taken as a whole. The issued shares of capital stock of
each of the Subsidiaries that is a corporation are duly authorized, validly
issued, fully paid and nonassessable, and all of the partnership interests in
each Subsidiary that is a partnership are validly issued and fully paid. Except
as described in the Prospectus and any Integrated Prospectus (or, if the
Prospectus and any required Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus), all of such shares and interests in the
Subsidiaries owned by the Operating Partnership are owned beneficially by the
Operating Partnership or another Subsidiary free and clear of any security
interests, mortgages, pledges, grants, liens, encumbrances, equities or claims.
(f) There are no outstanding (A) securities or obligations of the
Operating Partnership or any of the Subsidiaries convertible into or
exchangeable for any capital stock of the Operating Partnership or any
Subsidiary, (B) warrants, rights or options to subscribe for or purchase from
the Company, the Operating Partnership or any Subsidiary any such capital stock
or any such convertible or exchangeable securities or obligations, or (C)
obligations of the Company, the Operating Partnership or any such Subsidiary to
issue any shares of capital stock, any such convertible or exchangeable
securities or obligations, or any such warrants, rights or options, except as
described in the Prospectus and any Integrated Prospectus (or, if the Prospectus
and any required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus).
(g) The Operating Partnership, the Company and each of the
Subsidiaries has full power, corporate or other, to own or lease their
respective properties and conduct their respective businesses as described in
the Registration Statement, the Prospectus and any Integrated Prospectus (or, if
the Prospectus and any required Integrated Prospectus are not in existence, the
most recent Preliminary Prospectus); and the Operating Partnership and the
Company have full power, corporate or other, to enter into this Agreement and
any other agreement pursuant to which the Securities are issued as specified in
Schedule 1 to this Agreement (the "Securities Documents") and to carry out all
the terms and provisions hereof and thereof to be carried out by them.
(h) The Operating Partnership has an authorized, issued and
outstanding capitalization as set forth in the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus). All of the partnership
interests of the Operating Partnership have been duly authorized and the
partnership interests of the Operating Partnership outstanding are validly
issued and fully paid.
-3-
(i) The Securities have been duly authorized, and, when such
securities are issued, authenticated and delivered pursuant to the terms of this
Agreement and the applicable Securities Documents such securities will have been
duly and validly executed, authenticated, issued and delivered and will be the
legal, valid, binding and enforceable obligations of the Operating Partnership,
subject to the effect of bankruptcy, insolvency, moratorium, fraudulent
conveyance, reorganization and similar laws relating to creditors' rights
generally and to the application of equitable principles in any proceeding,
whether at law or in equity.
(j) [Intentionally omitted].
(k) The execution and delivery of the Securities Documents has been
duly authorized by all necessary action of the Operating Partnership, and, at
the Closing Date, such agreements will have been duly executed and delivered by
the Operating Partnership, and assuming due authorization, execution and
delivery of the Securities Documents by parties other than the Operating
Partnership as specified in the applicable Securities Documents, such agreements
will constitute valid and binding instruments of the Operating Partnership
enforceable against the Operating Partnership in accordance with their
respective terms, subject to the effect of bankruptcy, insolvency, moratorium,
fraudulent conveyance, reorganization and similar laws relating to creditors'
rights generally and to the application of equitable principles in any
proceeding, whether at law or in equity; and the Securities Documents have been
duly qualified under the Trust Indenture Act.
(l) No holders of outstanding securities of the Operating
Partnership or the Company are entitled as such to any preemptive or other
rights to subscribe for any of the Securities, and no holder of securities of
the Operating Partnership, the Company or any Subsidiary has any right which has
not been waived to require the Operating Partnership to register the offer or
sale of any securities owned by such holder under the Act in the public offering
contemplated by this Agreement.
(m) The Securities and the Securities Documents conform to their
description contained in the Prospectus and any Integrated Prospectus (or, if
the Prospectus and any required Integrated Prospectus are not in existence, the
most recent Preliminary Prospectus).
(n) The combined financial statements, schedules and selected
financial data of the Operating Partnership and the Property Partnerships (as
defined in the Registration Statement) and the consolidated financial
statements, schedules and selected financial data of the Operating Partnership
and the Company and their consolidated subsidiaries included in or incorporated
by reference in the Registration Statement, the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus) fairly present the
combined financial position of the Operating Partnership and the Property
Partnerships and fairly present the consolidated financial position of the
Operating Partnership and the Company and their consolidated subsidiaries, as
the case may be, and the results of operations and changes in financial
condition as of the dates and periods therein specified. Such combined and
consolidated financial statements and schedules have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods involved (except as otherwise noted therein).
(o) The selected financial data set forth under the caption
"Selected Financial Data" in the Prospectus and any Integrated Prospectus (or,
if the Prospectus and any required Integrated Prospectus are not in existence,
the most recent Preliminary Prospectus) fairly present, on the basis stated in
the Prospectus and any Integrated Prospectus (or such Preliminary Prospectus),
the information included therein. The pro forma financial statements and other
pro forma financial information included in or incorporated therein in the
Prospectus and any Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus) comply in all material respects with the applicable requirements of
Rule 11-02 of Regulation S-X of the Commission and the pro forma adjustments
have been properly applied to the historical amounts in the compilation of such
statements and the assumptions used in the preparation thereof are, in the
opinion of the Operating Partnership and the Company, reasonable.
(p) PricewaterhouseCoopers LLP, which has certified certain
financial statements of the Operating Partnership and of the Company and
delivered its reports with respect to the audited consolidated and
-4-
combined financial statements and schedules, and any other accounting firm that
has certified financial statements and delivered its reports with respect
thereto, included or incorporated by reference in the Registration Statement,
the Prospectus and any Integrated Prospectus (or, if the Prospectus and any
required Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus), are independent public accountants as required by the Act, the
Exchange Act and the respective rules and regulations thereunder.
(q) The execution and delivery of this Agreement has been duly
authorized by the Operating Partnership and the Company and this Agreement has
been duly executed and delivered by the Operating Partnership and the Company.
(r) No legal or governmental proceedings are pending to which the
Company, the Operating Partnership or any of their respective subsidiaries or to
which the property of the Company, the Operating Partnership or any of their
respective subsidiaries is subject, that are required to be described in the
Registration Statement, the Prospectus or any Integrated Prospectus (or, if the
Prospectus and any required Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus) and are not described therein, and no such
proceedings have been threatened against the Company, the Operating Partnership
or any of their respective subsidiaries; and no contract or other document is
required to be described in the Registration Statement, the Prospectus or any
Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus) or to
be filed as an exhibit to the Registration Statement that is not described
therein or filed as required.
(s) The issuance, offering and sale of the Securities to the
Underwriter by the Operating Partnership pursuant to this Agreement and the
Securities Documents, the compliance by the Operating Partnership with the other
provisions of this Agreement, the Securities and the Securities Documents and
the consummation of the other transactions herein and therein contemplated do
not (i) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as have been
obtained, such as may be required under state securities or blue sky laws and,
if the registration statement filed with respect to the Securities (as amended)
is not effective under the Act as of the time of execution hereof, such as may
be required (and shall be obtained as provided in this Agreement) under the Act,
or (ii) conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the properties or
assets of the Operating Partnership, the Company or any of their respective
subsidiaries pursuant to any indenture, mortgage, deed of trust, lease or other
agreement or instrument to which the Operating Partnership, the Company or any
of their respective subsidiaries is a party or by which the Operating
Partnership, the Company or any of their respective subsidiaries or any other of
their respective properties are bound, or the Agreement of Limited Partnership,
Articles of Incorporation, By-laws or other organizational documents, as the
case may be, of the Operating Partnership, the Company or any of their
respective subsidiaries, or any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or any arbitrator
applicable to the Operating Partnership or any of the Subsidiaries or any of
their properties.
(t) Each of the Operating Partnership and the Company has not,
directly or indirectly, (i) taken any action designed to cause or to result in,
or that has constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Operating
Partnership to facilitate the sale or resale of the Securities or (ii) since the
filing of the Registration Statement (A) sold, bid for, purchased, or paid
anyone any compensation for soliciting purchases of, the Securities or (B) paid
or agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Operating Partnership.
(u) Subsequent to the respective dates as of which information is
given in the Registration Statement, the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus), (1) neither the Operating
Partnership nor any of the Subsidiaries has incurred any material liability or
obligation, direct or contingent, or entered into any material transaction,
which is not in the ordinary course of business; (2) the Operating Partnership
has not purchased any of its outstanding preferred units, common units or
warrants, nor declared, paid or otherwise made any dividend or distribution of
any kind on its partners' capital; and (3) there has not been any material
-5-
change in the partners' capital, short-term debt or long-term debt of the
Operating Partnership or the Subsidiaries, except in each case as described in
or contemplated by the Prospectus and any Integrated Prospectus (or, if the
Prospectus and any required Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus).
(v) The Operating Partnership or the Subsidiaries have good and
indefeasible title in fee simple to all of the properties described under the
section entitled "Property Information -- Properties" of the Prospectus (the
"Properties") and marketable title to all other property owned by each of them,
in each case free and clear of any security interest, lien, mortgage, pledge,
encumbrance, equity, claim and other defect, except liens which do not
materially and adversely affect the value of such property and will not
interfere with the use made or proposed to be made of such property by the
Operating Partnership or such Subsidiary, and any and all real property and
buildings held under lease by the Operating Partnership or any such Subsidiary
are held under valid, subsisting and enforceable leases, with such exceptions as
are not material and do not interfere with the use made or proposed to be made
of such property and buildings by the Operating Partnership or such Subsidiary,
in each case except as described in the Prospectus and any Integrated Prospectus
(or, if the Prospectus and any required Integrated Prospectus are not in
existence, the most recent Preliminary Prospectus).
(w) No labor dispute with the employees of the Company or any of its
subsidiaries exists or is threatened or imminent that could result in a material
adverse change in the condition (financial or otherwise), business prospects,
net worth or results of operations of the Company and its subsidiaries, taken as
a whole, except as described in the Prospectus and any Integrated Prospectus
(or, if the Prospectus and any required Integrated Prospectus are not in
existence, the most recent Preliminary Prospectus).
(x) The Operating Partnership, the Company and their subsidiaries
own or possess, or can acquire on reasonable terms, all material patents,
trademarks, service marks, trade names, licenses, copyrights and proprietary and
other confidential information currently employed by them in connection with
their respective businesses, and none of the Operating Partnership, the Company
nor any of their subsidiaries has received any notice of infringement of or
conflict with asserted rights of any third party with respect to the foregoing
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a material adverse change in the condition
(financial or otherwise), business prospects, net worth or results of operations
of the Operating Partnership and the Subsidiaries, taken as a whole, except as
described in the Prospectus and any Integrated Prospectus (or, if the Prospectus
and any required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus).
(y) The Operating Partnership and each of the Subsidiaries is
insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the businesses in
which they will be engaged; neither the Operating Partnership nor any of the
Subsidiaries has been refused any insurance coverage sought or applied for; and
neither the Operating Partnership nor any of the Subsidiaries has any reason to
believe that any of them will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that
would not have material adverse effect on the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Operating Partnership and the Subsidiaries, taken as a whole, except as
described in the Prospectus and any Integrated Prospectus (or, if the Prospectus
and any required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus).
(z) None of the Subsidiaries is currently prohibited, directly or
indirectly, from paying any dividends to the Operating Partnership, from making
any other distribution on such subsidiary's capital stock or other equity
interest, from repaying to the Operating Partnership any loans or advances to
such Subsidiary from the Operating Partnership or from transferring any of such
Subsidiary's property or assets to the Operating Partnership or any of the other
Subsidiaries, except as described in the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus).
(aa) The Operating Partnership and each of the Subsidiaries has
complied with all laws, regulations and orders applicable to it or its business
and properties except where the failure to so comply
-6-
would not result in a material adverse change in the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Operating Partnership and the Subsidiaries, taken as a whole; the Operating
Partnership and the Subsidiaries possess all certificates, authorizations and
permits issued by the appropriate federal, state, municipal or foreign
regulatory authorities necessary to conduct their respective businesses except
where the failure to possess the same would not result in a material adverse
change in the condition (financial or otherwise), business prospects, net worth
or results of operations of the Operating Partnership and the Subsidiaries,
taken as a whole; and neither the Operating Partnership nor any of the
Subsidiaries has received any notice of proceedings relating to the revocation
or modification of any such certificate, authorization or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a material adverse change in the condition (financial
or otherwise), business prospects, net worth or results of operations of the
Operating Partnership and the Subsidiaries, taken as a whole, except as
described in the Prospectus and any Integrated Prospectus (or, if the Prospectus
and any required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus).
(bb) The Operating Partnership and the Company will conduct their
operations in a manner that will not subject them to registration as an
investment Company under the Investment Company Act of 1940, as amended, and the
transactions contemplated by this Agreement will not cause the Operating
Partnership or the Company to become an investment company subject to
registration under such Act.
(cc) The Operating Partnership, the Company and each of their
subsidiaries has filed all foreign, federal, state and local tax returns that
are required to be filed or have requested extensions thereof (except in any
case in which the failure so to file would not have a material adverse effect on
the condition (financial or otherwise), business prospects, net worth or results
of operations of the Operating Partnership and the Subsidiaries, taken as a
whole) and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any of the
foregoing is due and payable, except for any such assessment, fine or penalty
that is currently being contested in good faith or as described in the
Prospectus and any Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus).
(dd) The Company is organized in conformity with the requirements
for qualification as a real estate investment trust (a "REIT") under the
Internal Revenue Code of 1986, as amended (the "Code"), and the present and
contemplated method of operation of the Company and its subsidiaries does and
will enable the Company to meet the requirements for taxation as a REIT under
the Code.
(ee) None of the Operating Partnership, the Company nor any of their
subsidiaries is in violation of any federal or state law or regulation relating
to occupational safety and health and the Operating Partnership, the Company and
their subsidiaries have received all permits, licenses or other approvals
required of them under applicable federal and state occupational safety and
health and environmental laws and regulations to conduct their respective
businesses, and the Operating Partnership, the Company and each of their
subsidiaries is in compliance with all terms and conditions of any such permit,
license or approval, except any such violation of law or regulation, failure to
receive required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals which would not,
singly or in the aggregate result in a material adverse change in the condition
(financial or otherwise), business prospects, net worth or results of operations
of the Operating Partnership and the Subsidiaries, taken as a whole, except as
described in the Prospectus and any Integrated Prospectus (or, if the Prospectus
and any required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus).
(ff) Except for the shares of capital stock of each of the
Subsidiaries owned by the Operating Partnership or another Subsidiary, neither
the Operating Partnership nor any of the Subsidiaries owns any shares of stock
or any other equity securities of any corporation or has any equity interest in
any firm, partnership, association or other entity, except as described in or
contemplated by the Prospectus and any Integrated Prospectus (or, if the
Prospectus and any required Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus).
-7-
(gg) The Operating Partnership and the Subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (1) transactions are executed in accordance with management's
general or specific authorizations; (2) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (3) access
to assets is permitted only in accordance with management's general or specific
authorization; and (4) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(hh) Neither the Operating Partnership nor any of the Subsidiaries
is in violation of any term or provision of its Certificate of Formation,
Articles of Incorporation, By-laws, partnership agreements or other
organizational documents, as the case may be; no default exists, and no event
has occurred which, with notice or lapse of time or both, would constitute a
default, and the consummation of the transactions by this Agreement and under
the Securities Documents will not result in any default in the due performance
and observance of any term, covenant or condition of any indenture, mortgage,
deed of trust, lease or other agreement or instrument to which the Operating
Partnership or any Subsidiary is a party or by which the Operating Partnership,
the Subsidiaries or the Properties or any of their respective other properties
is bound or may be affected except such as would not result in any material
adverse effect in the condition (financial or otherwise), business prospects,
net worth or results of operations of the Operating Partnership and the
Subsidiaries, taken as a whole.
(ii) [Intentionally omitted].
(jj) (A) None of the Operating Partnership, the Company nor any
Subsidiary knows of any violation of any municipal, state or federal law, rule
or regulation (including those pertaining to environmental matters) concerning
the Properties or any part thereof which would have a material adverse effect in
the condition (financial or otherwise), business prospects, net worth or results
of operations of the Operating Partnership and the Subsidiaries, taken as a
whole; (B) each of the Properties complies with all applicable zoning laws,
ordinances, regulations and deed restrictions or other covenants in all material
respects and, if and to the extent there is a failure to comply, such failure
does not materially impair the value of any of the Properties and will not
result in a forfeiture or reversion of title; (C) none of the Operating
Partnership, the Company nor any Subsidiary has received from any governmental
authority any written notice of any condemnation of or zoning change affecting
the Properties or any part thereof, and none of the Operating Partnership, the
Company nor any Subsidiary knows of any such condemnation or zoning change which
is threatened and which if consummated would have a material adverse effect in
the condition (financial or otherwise), business prospects, net worth or results
of operations of the Operating Partnership and the Subsidiaries, taken as a
whole; (D) all liens, charges, encumbrances, claims, or restrictions on or
affecting the properties and assets (including the Properties) of the Operating
Partnership or any of the Subsidiaries that are required to be described in the
Prospectus and any Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus) are disclosed therein; (E) no lessee of any portion of any of the
Properties is in default under any of the leases governing such properties and
there is no event which, but for the passage of time or the giving of notice or
both would constitute a default under any of such leases, except such defaults
that would not have a material adverse effect in the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Operating Partnership and the Subsidiaries, taken as a whole; and (F) no tenant
under any lease pursuant to which the Operating Partnership or any of the
Subsidiaries leases the Properties has an option or right of first refusal to
purchase the premises leased thereunder or the building of which such premises
are a part, except as such options or rights of first refusal which, if
exercised, would not have a material adverse effect in the condition (financial
or otherwise), business prospects, net worth or results of operations of the
Operating Partnership and the Subsidiaries, taken as a whole, and except as
provided by law.
(kk) Except as otherwise disclosed in the Prospectus and any
Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus) or in
the Phase I Environmental Audits previously delivered to the Underwriter (the
"Audits"), (i) none of the Operating Partnership, the Company, any of the
Subsidiaries nor, to the best knowledge of the Operating Partnership and the
Company, any other owners of the property at any time or any other party has at
any time, handled, stored, treated, transported, manufactured, spilled, leaked,
or discharged, dumped, transferred or otherwise
-8-
disposed of or dealt with, Hazardous Materials (as hereinafter defined) on, to
or from the Properties, other than by any such action taken in compliance with
all applicable Environmental Statutes or by the Operating Partnership, the
Company, any of the Subsidiaries or any other party in connection with the
ordinary use of residential, retail or commercial properties owned by the
Operating Partnership; (ii) the Operating Partnership and the Company do not
intend to use the Properties or any subsequently acquired properties for the
purpose of handling, storing, treating, transporting, manufacturing, spilling,
leaking, discharging, dumping, transferring or otherwise disposing of or dealing
with Hazardous Materials other than by any such action taken in compliance with
all applicable Environmental Statues or by the Operating Partnership, the
Company, any of the Subsidiaries or any other party in connection with the
ordinary use of residential, retail or commercial properties owned by the
Operating Partnership; (iii) none of the Operating Partnership, the Company, nor
any of the Subsidiaries knows of any seepage, leak, discharge, release,
emission, spill, or dumping of Hazardous Materials into waters on or adjacent to
the Properties or any other real property owned or occupied by any such party,
or onto lands from which Hazardous Materials might seep, flow or drain into such
waters; (iv) none of the Operating Partnership, the Company, nor any of the
Subsidiaries has received any notice of, or has any knowledge of any occurrence
or circumstance which, with notice or passage of time or both, would give rise
to a claim under or pursuant to any federal, state or local environmental
statute or regulation or under common law, pertaining to Hazardous Materials on
or originating from any of the Properties or any assets described in the
Prospectus and any Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus) or any other real property owned or occupied by any such party or
arising out of the conduct of any such party, including without limitation a
claim under or pursuant to any Environmental Statute (hereinafter defined); (v)
neither the Properties nor any other land owned by the Operating Partnership or
any of the Subsidiaries is included or, to the best of the Operating
Partnership's knowledge, proposed for inclusion on the National Priorities List
issued pursuant to CERCLA (as hereinafter defined) by the United States
Environmental Protection Agency (the "EPA") or, to the best of the Operating
Partnership's and the Company's knowledge, proposed for inclusion on any similar
list or inventory issued pursuant to any other Environmental Statute or issued
by any other Governmental Authority (as hereinafter defined).
As used herein, "Hazardous Material" shall include, without
limitation any flammable explosives, radioactive materials, hazardous materials,
hazardous wastes, toxic substances, or related materials, asbestos or any
hazardous material as defined by any federal, state or local environmental law,
ordinance, rule or regulation including without limitation the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended, 42
U.S.C. Sections 9601-9675 ("CERCLA"), the Hazardous Materials Transportation
Act, as amended, 49 U.S.C. Sections 1801-1819, the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. Sections 6901-6992K, the Emergency Planning
and Community Right-to-Know Act of 1986, 42 U.S.C. Sections 11001-11050, the
Toxic Substances Control Act, 15 U.S.C. Sections 2601-2671, the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections 136-136y, the
Clean Air Act, 42 U.S.C. Sections 7401-7642, the Clean Water Act (Federal Water
Pollution Control Act), 33 U.S.C. Sections 1251-1387, the Safe Drinking Water
Act, 42 U.S.C. Sections 300f-300j-26, and the Occupational Safety and Health
Act, 29 U.S.C. Sections 651-678, as any of the above statutes may be amended
from time to time, and in the regulations promulgated pursuant to each of the
foregoing (individually, an "Environmental Statute") or by any federal, state or
local governmental authority having or claiming jurisdiction over the properties
and assets described in the Prospectus (a "Governmental Authority").
(ll) Each certificate signed by any officer of the Operating
Partnership and delivered to the Underwriter or counsel for the Underwriter
shall be deemed to be a representation and warranty by the Operating Partnership
to the Underwriter as to the matters covered thereby.
(mm) The Operating Partnership and the Company has not distributed
and, prior to the later of (i) the Closing Date and (ii) the completion of the
distribution of the Securities, will not distribute any material in connection
with the offering and sale of the Securities other than the Registration
Statement or any amendment thereto, any Preliminary Prospectus, the Prospectus
or any Integrated Prospectus or any amendment or supplement thereto, or other
materials, if any, permitted by the Act.
-9-
(nn) (i) The Operating Partnership operates in accordance with the
Delaware Limited Partnership Act and the Partnership Agreement; (ii) the
Operating Partnership has not made and does not presently intend to make an
election to be excluded from the provisions of subchapter K of the Internal
Revenue Code of 1986, as amended; (iii) the Operating Partnership has not
elected and does not presently intend to elect to be treated as an association
taxable as a corporation for federal income tax purposes under Treasury
regulations section 301.7701-3; (iv) no partnership interests in the Operating
Partnership have been or are presently expected to be traded on an established
securities market within the meaning of Notice 88-75, 1988-2 C.B. 386; (v) no
partnership interests in the Operating Partnership have been or are presently
expected to be issued in a transaction required to be registered under the
Securities Act of 1933, as amended, other than the resale of the Common Stock
for which such interests may be redeemed by the holders of such interests; (vi)
the Operating Partnership does not have more than 500 partners (taking into
account as a partner each person who indirectly owns an interest in the
Operating Partnership through a partnership, grantor trust, or S corporation and
aggregating partnerships where such partnerships jointly operate one or more
businesses or their operations are interrelated and the principal purpose for
the use of multiple partnerships is to permit any of the partnerships to satisfy
the 500-partner limitation); and (vii) the Operating Partnership has not added a
substantial new line of business, within the meaning of Treasury regulations
section 1.7704-1(l)(3), since December 31, 1995.
3. PURCHASE, SALE AND DELIVERY OF THE SECURITIES.
(a) On the basis of the representations, warranties, agreements and
covenants herein contained and subject to the terms and conditions herein set
forth, the Operating Partnership agrees to issue and sell to the Underwriter,
and the Underwriter agrees to purchase from the Operating Partnership, at the
purchase price specified in Schedule 1 hereto, the number of Securities set
forth opposite the name of the Underwriter in Schedule 2 hereto. One or more
certificates in definitive form for the Securities that the Underwriter has
agreed to purchase hereunder, and in such denomination or denominations and
registered in such name or names as the Underwriter has requested upon notice to
the Operating Partnership prior to the Closing Date, shall be delivered by or on
behalf of the Operating Partnership to the Underwriter for the account of the
Underwriter, against payment by or on behalf of the Underwriter of the purchase
price therefor to the Operating Partnership in such funds as are specified in
Schedule 1 hereto. Such delivery of and payment for the Securities shall be made
at the date, time and place identified in Schedule 1 hereto, or at such other
date, time or place as the Underwriter and the Operating Partnership may agree
upon such date and time of delivery against payment being herein referred to as
the "Closing Date". The Operating Partnership has made such certificate or
certificates for the Securities available for checking and packaging by the
Underwriter at the offices in New York, New York of the Operating Partnership's
transfer agent or registrar or warrant agent or of the Underwriter at least 24
hours prior to the Closing Date.
(b) [Intentionally omitted].
4. COVENANTS OF THE OPERATING PARTNERSHIP AND THE COMPANY. Each of
the Operating Partnership and the Company covenant and agree with the
Underwriter that:
(a) The Operating Partnership will file the Prospectus or any Term
Sheet that constitutes a part thereof, any Integrated Prospectus or the
Prospectus Supplement, as the case may be, and any amendment or supplement
thereto with the Commission in the manner and within the time period required by
Rules 434 and 424(b) under the Act. During any time when a prospectus relating
to the Securities is required to be delivered under the Act, the Operating
Partnership (i) will comply with all requirements imposed upon it by the Act and
the Exchange Act and the respective rules and regulations of the Commission
thereunder to the extent necessary to permit the continuance of sales of or
dealings in the Securities in accordance with the provisions hereof and of the
Prospectus and any Integrated Prospectus, as then amended or supplemented, and
(ii) will not file with the Commission the Prospectus, Term Sheet, any
Integrated Prospectus or any amendment or supplement thereto or any amendment to
the Registration Statement of which the Underwriter shall not previously have
been advised and furnished with a copy for a reasonable period of time prior to
the proposed filing and as to which filing the Underwriter shall not have given
its consent. The Operating Partnership will prepare and file with the
Commission,
-10-
in accordance with the rules and regulations of the Commission, promptly upon
request by the Underwriter or counsel for the Underwriter, any amendment to the
Registration Statement or amendment or supplement to the Prospectus and any
Integrated Prospectus that may be necessary or advisable in connection with the
distribution of the Securities by the Underwriter, and will use its best efforts
to cause any such amendment to the Registration Statement to be declared
effective by the Commission as promptly as possible. The Operating Partnership
will advise the Underwriter, promptly after receiving notice thereof, of the
time when any amendment to the Registration Statement has been filed or declared
effective or the Prospectus, any Integrated Prospectus or any amendment or
supplement thereto has been filed and will provide evidence satisfactory to the
Underwriter of each such filing or effectiveness.
(b) The Operating Partnership will advise the Underwriter, promptly
after receiving notice or obtaining knowledge thereof, of (i) the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto or any order
directed at any document incorporated by reference in the Registration
Statement, the Prospectus or any Integrated Prospectus or any amendment or
supplement thereto or any order preventing or suspending the use of any
Preliminary Prospectus, the Prospectus or any Integrated Prospectus or any
amendment or supplement thereto, (ii) the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, (iii) the institution,
threatening or contemplation of any proceeding for any such purpose or (iv) any
request made by the Commission for amending the Registration Statement, for
amending or supplementing any Preliminary Prospectus, the Prospectus or any
Integrated Prospectus or for additional information. The Operating Partnership
and the Company will use their best efforts to prevent the issuance of any such
stop order and, if any such stop order is issued, to obtain the withdrawal
thereof as promptly as possible.
(c) If required by applicable law, the Operating Partnership will
arrange for the qualification of the Securities for offering and sale under the
securities or blue sky laws of such jurisdictions as the Underwriter may
designate and will continue such qualifications in effect for as long as may be
necessary to complete the distribution of the Securities; PROVIDED, HOWEVER,
that in connection therewith the Operating Partnership shall not be required to
qualify as a foreign corporation or to execute a general consent to service of
process in any jurisdiction.
(d) If at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus or any Integrated Prospectus, as then amended or supplemented,
would include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if for any
other reason it is necessary at any time to amend or supplement the Prospectus
or any Integrated Prospectus to comply with the Act or Exchange Act or the
respective rules or regulations of the Commission thereunder, the Operating
Partnership will promptly notify the Underwriter thereof and, subject to Section
4((a)) of this Agreement, will prepare and file with the Commission, at the
Operating Partnership's expense, an amendment to the Registration Statement or
an amendment or supplement to the Prospectus and any Integrated Prospectus that
corrects such statement or omission or effects such compliance.
(e) The Operating Partnership will, without charge, provide (i) to
the Underwriter and to counsel for the Underwriter, a conformed copy of the
registration statement originally filed with respect to the Securities and any
amendment thereto (in each case including exhibits thereto), and (ii) so long as
a prospectus relating to the Securities is required to be delivered under the
Act, as many copies of each Preliminary Prospectus, the Prospectus or any
Integrated Prospectus or any amendment or supplement thereto as the Underwriter
may reasonably request; without limiting the application of clause (ii) of this
sentence, the Operating Partnership, not later than (A) 6:00 p.m., New York city
time, on the date of determination of the public offering price, if such
determination occurred at or prior to 10:00 AM, New York City time, on such date
or (B) 12:00 Noon, New York City time, on the business day following the date of
determination of the public offering price, if such determination occurred after
10:00 AM, New York city time, on such date, will deliver to the Underwriter,
without charge, as many copies of the Prospectus or any Integrated Prospectus
and any amendment or supplement thereto as the Underwriter may reasonably
request for purposes of confirming orders that are expected to settle on the
Closing Date.
-11-
(f) The Operating Partnership, as soon as practicable, will make
generally available to its securityholders and to the Underwriter a consolidated
earning statement of the Operating Partnership and its subsidiaries that
satisfies the provisions of Section 11(a) of the Act and Rule 158 thereunder.
(g) The Operating Partnership will apply the net proceeds from the
sale of the Securities as set forth under "Use of Proceeds" in the Prospectus
and any Integrated Prospectus.
(h) [Intentionally omitted].
(i) [Intentionally omitted].
(j) The Operating Partnership will not, directly or indirectly, (i)
take any action designed to cause or to result in, or that has constituted or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Operating Partnership to
facilitate the sale or resale of the Securities or (ii) (A) sell, bid for,
purchase, or pay anyone any compensation for soliciting purchases of the
Securities or (B) pay or agree to pay to any person any compensation for
soliciting another to purchase any other securities of the Operating
Partnership.
(k) If at any time during the 25-day period after the Registration
Statement becomes effective, any rumor, publication or event relating to or
affecting the Operating Partnership shall occur as a result of which in your
opinion the market price of the Securities has been or is likely to be
materially affected (regardless of whether such rumor, publication or event
necessitates a supplement to or amendment of the Prospectus or any Integrated
Prospectus), the Operating Partnership will, after written notice from you
advising the Operating Partnership to the effect set forth above, forthwith
prepare, consult with you concerning the substance of, and disseminate a press
release or other public statement, reasonably satisfactory to you, responding to
or commenting on such rumor, publication or event.
(l) [Intentionally omitted].
(m) The Company will continue to use its best efforts to meet the
requirements to qualify as a REIT under the Code.
5. EXPENSES. The Operating Partnership will pay all costs and
expenses incident to the performance of its obligations under this Agreement,
whether or not the transactions contemplated herein are consummated or this
Agreement is terminated pursuant to Section 10 hereof, including all costs and
expenses incident to (i) the printing or other production of documents with
respect to the transactions, including any costs of printing the registration
statement originally filed with respect to the Securities and any amendment
thereto, any Preliminary Prospectus, the Prospectus and any Integrated
Prospectus and any amendment or supplement thereto, this Agreement, the
Securities Documents and any blue sky memoranda, (ii) all arrangements relating
to the delivery to the Underwriter of copies of the foregoing documents, (iii)
the fees and disbursements of counsel, accountants and any other experts or
advisors retained by the Operating Partnership and the Company, (iv)
preparation, issuance and delivery to the Underwriter of any certificates
evidencing the Securities, including the fees and expenses of the transfer
agent, exchange agent or registrar, (v) the qualification, if any, of the
Securities under state securities and blue sky laws and real estate syndication
laws, including filing fees and fees and disbursements of counsel for the
Underwriter relating thereto and relating to the preparation of a blue sky
memoranda, (vi) the filing fees of the Commission relating to the Securities,
(vii) [intentionally omitted], (viii) any meetings with prospective investors in
the Securities arranged by the Operating Partnership (other than as shall have
been specifically approved by the Underwriter to be paid for by the Underwriter)
and (ix) advertising relating to the offering of the Securities requested by the
Operating Partnership (other than as shall have been specifically approved by
the Underwriter to be paid for by the Underwriter). If the sale of the
Securities provided for herein is not consummated because any condition to the
obligation of the Underwriter set forth in Section 6 of this Agreement is not
satisfied, because this Agreement is terminated pursuant to Section 10 of this
Agreement or because of any failure, refusal or inability on the part of the
Operating Partnership or the Company to perform all
-12-
obligations and satisfy all conditions on its part to be performed or satisfied
hereunder other than by reason of a default by and of the Underwriter, the
Operating Partnership will reimburse the Underwriter severally upon demand for
all out-of-pocket expenses (including counsel fees and disbursements) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Securities. The Operating Partnership shall not in any event be liable to
the Underwriter for the loss of anticipated profits from the transactions
covered by this Agreement.
6. CONDITIONS OF THE UNDERWRITER'S OBLIGATION. The obligation of the
Underwriter to purchase and pay for the Securities shall be subject, in the
Underwriter's sole discretion, to the accuracy of the representations and
warranties of the Operating Partnership and the Company contained herein as of
the date of this Agreement as specified in Schedule 1 hereto and as of the
Closing Date, as if made on and as of the Closing Date, to the accuracy of the
statements of the Operating Partnership's officers made pursuant to the
provisions hereof, to the performance by the Operating Partnership and the
Company of their covenants and agreements hereunder and to the following
additional conditions:
(a) The Prospectus, any Integrated Prospectus or the Prospectus
Supplement, as the case may be, and any amendment or supplement thereto shall
have been filed with the Commission in the manner and within the time period
required by Rules 434 and 424(b) under the Act; no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereto and no order directed at any document incorporated by reference in the
Registration Statement, the Prospectus or any Integrated Prospectus or any
amendment or supplement thereto shall have been issued, and no proceedings for
that purpose shall have been instituted or threatened or, to the knowledge of
the Operating Partnership, the Company or the Underwriter, shall be contemplated
by the Commission; and the Operating Partnership shall have complied with any
request of the Commission for additional information (to be included in the
Registration Statement, the Prospectus or any Integrated Prospectus or
otherwise).
(b) The Underwriter shall have received an opinion, dated the
Closing Date, from Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP, counsel for the Company,
to the effect that:
(i) the Operating Partnership has been duly organized and is
validly existing as a limited partnership in good standing under the
laws of the State of Delaware and is duly qualified to transact
business and is in good standing under the laws of all other
jurisdictions where the ownership or leasing of its properties or
the conduct of its business requires such qualification, except
where the failure to be so qualified does not amount to a material
liability or disability to the Operating Partnership and the
Subsidiaries, taken as a whole. Each of the Subsidiaries has been
duly organized and is validly existing as a general or limited
partnership or corporation in good standing under the laws of the
jurisdiction of its organization, and is duly qualified to transact
business and is in good standing under the laws of all other
jurisdictions where the ownership or leasing of its properties or
the conduct of its business requires such qualification, except
where the failure to be so qualified does not amount to a material
liability or disability to the Operating Partnership and the
Subsidiaries, taken as a whole;
(ii) the Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the
State of Maryland and is duly qualified to transact business and is
in good standing under the laws of all other jurisdictions where the
ownership or leasing of its properties or the conduct of its
business requires such qualification, except where the failure to be
so qualified does not amount to a material liability or disability
to the Company and its subsidiaries, taken as a whole.
(iii) the Operating Partnership, the Company and each of their
subsidiaries have full power, corporate or other, to own or lease
their respective properties and conduct their respective businesses
as described in the Registration Statement, the Prospectus and any
Integrated Prospectus and each of the Operating Partnership, the
Company and their subsidiaries have full power, corporate or other,
-13-
to enter into this Agreement and the Securities Documents and to
carry out all the terms and provisions hereof and thereof to be
carried out by it;
(iv) the issued shares of capital stock of each of the
Subsidiaries that is a corporation are duly authorized, validly
issued, fully paid and nonassessable, and all of the partnership
interests in each Subsidiary that is a partnership are validly
issued and fully paid. Except as described in the Registration
Statement, the Prospectus and any Integrated Prospectus, all of such
shares and interests owned by the Operating Partnership or another
Subsidiary are owned beneficially by the Operating Partnership or
such Subsidiary free and clear of any security interest, mortgage,
pledge, lien, encumbrance, equity or claim;
(v) the Operating Partnership has an authorized, issued and
outstanding capitalization as set forth in the Prospectus and any
Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus). All of the partnership interests of the
Operating Partnership are validly issued and fully paid;
(vi) the Securities have been duly authorized and executed and
when authenticated in accordance with the terms of the Securities
Documents and delivered against payment therefor in accordance with
this Underwriting Agreement, will be the legal, valid, binding and
enforceable obligations of the Operating Partnership entitled to the
benefits provided by the Securities Documents, subject to the effect
of bankruptcy, insolvency, moratorium, fraudulent conveyance,
reorganization and similar laws relating to creditors' rights
generally and to the application of equitable principles in any
proceeding, whether at law or in equity;
(vii) [Intentionally omitted];
(viii)the execution and delivery of the Securities Documents
have been duly authorized by the Operating Partnership, and the
Securities Documents have been duly executed and delivered by the
Operating Partnership, and assuming due authorization, execution and
delivery of the Securities Documents by parties other than the
Operating Partnership as specified in the applicable Securities
Documents, such agreements are valid and binding instruments of the
Operating Partnership enforceable against the Operating Partnership
in accordance with their respective terms, subject to the effect of
bankruptcy, insolvency, moratorium, fraudulent conveyance,
reorganization and similar laws relating to creditors' rights
generally and to the application of equitable principles in any
proceeding, whether at law or in equity; and the Securities
Documents have been duly qualified under the Trust Indenture Act;
(ix) no holders of outstanding securities of the Operating
Partnership are entitled as such to any preemptive or other rights
to subscribe for any of the Securities, and no holder of securities
of the Operating Partnership or any Subsidiary has any right which
has not been waived to require the Operating Partnership to register
the offer or sale of any securities owned by such holder under the
Act in the public offering contemplated by this Agreement;
(x) the Securities and the Securities Documents conform in all
material respects to the descriptions thereof under the headings
"Description of the Notes" and "Description of Debt Securities" in
the Prospectus; and the statements set forth under the headings
"Restrictions on Ownership of Offered Securities", "Material United
States Federal Income Tax Considerations to the Company of its REIT
Election", "Risk Factors", "Certain United States Federal Income Tax
Considerations to Holders of Notes" and "Underwriting", in the
Prospectus, insofar as such statements constitute a summary of the
legal matters, documents or proceedings referred to therein, provide
a fair summary of such legal matters, documents and proceedings;
-14-
(xi) the execution and delivery of this Agreement has been
duly authorized by all necessary corporate and partnership action of
the Company and the Operating Partnership and this Agreement has
been duly executed and delivered by the Company and the Operating
Partnership;
(xii) (A) no legal or governmental proceedings are pending to
which the Company, the Operating Partnership, any of their
respective subsidiaries, or any of their respective directors or
officers in their capacity as such, is a party or to which the
Properties or any other property of the Company, the Operating
Partnership or any of their respective subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus and are not described therein, and, to the best knowledge
of such counsel, no such proceedings have been threatened against
the Company, the Operating Partnership or any of their respective
subsidiaries or with respect to the Properties or any of their
respective other properties and (B) no contract or other document is
required to be described in the Registration Statement, the
Prospectus or any Integrated Prospectus or to be filed as an exhibit
to the Registration Statement that is not described therein or filed
as required;
(xiii)the issuance, offering and sale of the Securities to the
Underwriter by the Operating Partnership pursuant to this Agreement,
the compliance by the Operating Partnership with the other
provisions of this Agreement, any Securities Documents and the
consummation of the other transactions herein contemplated do not
(A) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as
have been obtained and such as may be required under state
securities or blue sky laws (as to which such counsel need not
opine) or (B) conflict with or result in a breach or violation of
any of the terms and provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any of the Properties or any other properties or
assets of the Operating Partnership, the Company or any of their
respective subsidiaries pursuant to any indenture, mortgage, deed of
trust, lease or other agreement or instrument to which the Operating
Partnership, the Company or any of their respective subsidiaries is
a party or by which the Operating Partnership, the Company or any of
their respective subsidiaries or the Properties or any other of
their respective properties are bound, or the Agreement of Limited
Partnership, Articles of Incorporation, By-laws or other
organizational documents, as the case may be, of the Operating
Partnership, the Company or any of their respective subsidiaries, or
any statute or any judgment, decree, order, rule or regulation of
any court or other governmental authority or (to the best knowledge
of such counsel) any arbitrator applicable to the Operating
Partnership, the Company or any of their respective subsidiaries or
any of the Properties;
(xiv) none of the Subsidiaries is currently contractually
prohibited, directly or indirectly, from paying any dividends to the
Operating Partnership, from making any other distribution on such
subsidiary's capital stock or other equity interests, from repaying
to the Operating Partnership any loans or advances to such
Subsidiary from the Operating Partnership or from transferring any
of such Subsidiary's property or assets to the Operating Partnership
or any of the other Subsidiaries, except as described in the
Prospectus and any Integrated Prospectus;
-15-
(xv) to the best knowledge of such counsel, the Operating
Partnership and the Subsidiaries possess all certificates,
authorizations, licenses and permits issued by the appropriate
federal, state, municipal or foreign regulatory authorities
necessary to conduct their respective businesses except for such
certificates, authorizations, licenses and permits the failure of
which to possess would not be expected to result in a material
adverse change in the condition (financial or otherwise), business,
prospects, net worth or results of operations of the Operating
Partnership and the Subsidiaries, taken as a whole, and neither the
Operating Partnership nor any of the Subsidiaries has received any
notice of proceedings relating to the revocation or modification of
any such certificate, authorization, license or permit which, singly
or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a material adverse change in the
condition (financial or otherwise), business, prospects, net worth
or results of operations of the Operating Partnership and the
Subsidiaries, taken as a whole, except as described in the
Prospectus and any Integrated Prospectus;
(xvi) the Operating Partnership and the Company are not
subject to registration as an investment company under the
Investment Company Act of 1940, as amended, and the transactions
contemplated by this Agreement will not cause the Operating
Partnership or the Company to become an investment company subject
to registration under such Act;
(xvii)none of the Operating Partnership, the Company nor any
of the Subsidiaries is in violation of any term or provision of its
articles of incorporation, bylaws, partnership agreements or other
organizational documents, as the case may be; no default exists, and
no event has occurred which, with notice or lapse of time or both,
would constitute a default, and the issuance, offering and sale of
the Securities to the Underwriter by the Operating Partnership
pursuant to this Agreement and the Securities Documents, the
compliance by the Operating Partnership and the Company with the
other provisions of this Agreement, the Securities and the
Securities Documents and the consummation of the other transactions
herein and therein contemplated will not result in any default, in
the due performance and observance of any term, covenant or
condition of any indenture, mortgage or deed of trust, or any
material lease or other agreement or instrument known to such
counsel after due inquiry to which the Operating Partnership and the
Company or any of the Subsidiaries is a party or by which the
Operating Partnership and the Company, any of the Subsidiaries, any
of the Properties or any of their respective other properties is
bound or may be affected except such as would not result in any
material adverse effect in the condition (financial or otherwise),
business prospects, net worth or results of operations of the
Operating Partnership and its subsidiaries, taken as a whole;
(xviii) the Registration Statement is effective under the Act;
the Prospectus or any Term Sheet that constitutes a part thereof and
any Integrated Prospectus or the Prospectus Supplement, as the case
may be, has been filed with the Commission in the manner and within
the time period required by Rules 434 and 424(b); and no stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto and no order directed at any
document incorporated by reference in the Registration Statement,
the Prospectus, any Integrated Prospectus or any amendment or
supplement thereto has been issued, and no proceedings for that
purpose have been instituted or, to the best knowledge of such
counsel, threatened by the Commission; and
(xix) the Registration Statement originally filed with respect
to the Securities and each amendment thereto, the Prospectus and any
Integrated Prospectus (in each case, including the documents
incorporated by reference therein but not including the financial
statements and other financial and statistical data contained
therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the applicable requirements of
the Act and the Exchange Act and the respective rules and
regulations of the Commission thereunder.
Such counsel shall also state that they have no reason to believe
that the Registration Statement, as of its effective date, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading or
that the Prospectus or any Integrated Prospectus, as of the date of the
Prospectus Supplement or any required Integrated Prospectus and the date of such
opinion, included or includes any untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering any such opinion, such counsel may rely, as to matters
of fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and the Operating Partnership and public officials and,
as to matters involving the application of laws of any jurisdiction other than
the States of New York, New Jersey and Delaware or the United States, to the
extent satisfactory in form and scope to counsel for the Underwriter, upon the
opinion of local counsel. The foregoing opinion shall also state that the
Underwriter is justified in relying upon such opinion of local counsel, and
copies of such opinion shall be delivered to the Underwriter and counsel for the
Underwriter.
-16-
References to the Registration Statement, the Prospectus and any
Integrated Prospectus in this paragraph (b) shall include any amendment or
supplement thereto at the date of such opinion.
(c) The Underwriter shall have received an opinion, dated the
Closing Date, of Hunton & Xxxxxxxx, counsel for the Underwriter, with respect to
the issuance and sale of the Securities, the Registration Statement, the
Prospectus, and any Integrated Prospectus and such other related matters as the
Underwriter may reasonably require, and the Operating Partnership shall have
furnished to such counsel such documents as they may reasonably request for the
purpose of enabling them to pass upon such matters.
(d) The Underwriter shall have received from PricewaterhouseCoopers
LLP and each other accounting firm that has certified financial statements, and
delivered its report with respect thereto, included or incorporated by reference
in the Registration Statement, the Prospectus and any Integrated Prospectus, a
letter or letters dated, respectively, the date of this Agreement as specified
in Schedule 1 hereto and the Closing Date, in form and substance satisfactory to
the Underwriter, to the effect that:
(i) they are independent accountants with respect to the
Operating Partnership, the Company and their subsidiaries within the
meaning of the Act, the Exchange Act and the applicable published
rules and regulations thereunder;
(ii) in their opinion, the financial statements audited by
them and incorporated by reference in the Registration Statement,
the Prospectus and any Integrated Prospectus comply as to form in
all material respects with the applicable accounting requirements of
the Act, the Exchange Act and the related published rules and
regulations thereunder;
(iii) a reading of the minute books of the shareholders, the
board of directors, partners and any committees thereof of the
Operating Partnership, the Company and each of their consolidated
subsidiaries, and inquiries of certain officials of the Operating
Partnership, the Company and their consolidated subsidiaries who
have responsibility for financial and accounting matters, nothing
came to their attention that caused them to believe that:
(A) (i) any unaudited consolidated condensed financial
statements of the Operating Partnership, the Company and their
consolidated subsidiaries included in the Registration
Statement, the Prospectus and any Integrated Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Act, the Exchange Act and the
related published rules and regulations thereunder, or (ii)
any material modification should be made to the unaudited
consolidated condensed financial statements for them to be in
conformity with generally accepted accounting principles;
(B) at a specific date not more than five business days
prior to the date of such letter, there were any changes in
the partners' capital or increase in mortgages and loans
payable of the Operating Partnership and its consolidated
subsidiaries, in each case compared with amounts shown on the
most recent consolidated balance sheet included in the
Registration Statement, the Prospectus and any Integrated
Prospectus, except for such changes set forth in such letter;
(iv) they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages
and financial information that are derived from the general
accounting records of the Operating Partnership, the Company and
their consolidated subsidiaries and are included in the Registration
Statement, the Prospectus and any Integrated Prospectus and in
Exhibit 12 to the Registration Statement, including the information
included or incorporated in the Operating Partnership's and the
Company's most recent Annual Report on Form 10-K under the captions
"Business" (Item 1), "Selected Financial Data" (Item 6) and
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" (Item 7) and the information included or
incorporated in the Operating Partnership's and the Company's
Quarterly Reports on Form 10-Q under the caption
-17-
"Management's Discussion and Analysis of Financial Condition and
Results of Operations,"and have compared such amounts, percentages
and financial information with such records and with information
derived from such records and have found them to be in agreement,
excluding any questions of legal interpretation; and
(v) on the basis of a reading of any unaudited pro forma
consolidated condensed financial statements included in the
Registration Statement, the Prospectus and any Integrated
Prospectus, carrying out certain specified procedures that would not
necessarily reveal matters of significance with respect to the
comments set forth in this paragraph (v), inquiries of certain
officials of the Operating Partnership, the Company, their
consolidated subsidiaries and any acquired company who have
responsibility for financial and accounting matters and proving the
arithmetic accuracy of the application of the pro forma adjustments
to the historical amounts in the unaudited pro forma consolidated
condensed financial statements, nothing came to their attention that
caused them to believe that the unaudited pro forma consolidated
condensed financial statements do not comply in form in all material
respects with the applicable accounting requirements of Rule 11-02
of Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of
such statements.
In the event that the letters referred to above set forth any such
changes, decreases or increases, it shall be a further condition to the
obligation of the Underwriter that (A) such letters shall be accompanied by a
written explanation of the Company as to the significance thereof, unless the
Underwriter deems such explanation unnecessary, and (B) such changes, decreases
or increases do not, in the sole judgment of the Underwriter, make it
impractical or inadvisable to proceed with the purchase and delivery of the
Securities as contemplated by the Registration Statement.
References to the Registration Statement, the Prospectus and any
Integrated Prospectus in this paragraph (d) with respect to either letter
referred to above shall include any amendment or supplement thereto at the date
of such letter.
(e) The Underwriter shall have received a certificate, dated the
Closing Date, of the chief executive officer or an executive vice president and
the chief financial or accounting officer of the Company, on behalf of the
Company for itself and as the general partner of the Operating Partnership, to
the effect that:
(i) the representations and warranties of the Operating
Partnership and the Company in this Agreement are true and correct
as if made on and as of the Closing Date; the Registration
Statement, as amended as of the Closing Date, does not include any
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading, and
the Prospectus or any Integrated Prospectus, as amended or
supplemented as of the Closing Date, does not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and
the Operating Partnership and the Company have performed all
covenants and agreements and satisfied all conditions on their part
to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto and
no order directed at any document incorporated by reference in the
Registration Statement, the Prospectus or any Integrated Prospectus
or any amendment or supplement thereto has been issued, and no
proceedings for that purpose have been instituted or threatened or,
to the best of the Company's or the Operating Partnership's
knowledge, are contemplated by the Commission; and
(iii) subsequent to the respective dates as of which
information is given in the Registration Statement, the Prospectus
and any Integrated Prospectus, none of the Operating Partnership,
the Company nor any of their subsidiaries has sustained any material
loss or interference with their respective businesses or properties
from fire, flood, hurricane, accident or other calamity, whether or
not covered by insurance, or from any labor dispute or any legal or
governmental proceeding, and there has
-18-
not been any material adverse change, or any development involving a
prospective material adverse change, in the condition (financial or
otherwise), management, business prospects, net worth or results of
operations of the Operating Partnership, the Company or any of their
subsidiaries, except in each case as described in or contemplated by
the Prospectus or any Integrated Prospectus (exclusive of any
amendment or supplement thereto).
(f) On or before the Closing Date, the Underwriter and counsel for
the Underwriter shall have received such further certificates, documents or
other information as they may have reasonably requested from the Operating
Partnership or the Company.
(g) [Intentionally omitted].
(h) [Intentionally omitted].
(i) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have been any downgrading in the
rating of any debt securities or preferred stock of the Operating Partnership or
the Company by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating of any
debt securities or preferred stock of the Operating Partnership or the Company
(other than an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating).
All opinions, certificates, letters and documents delivered pursuant
to this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Underwriter and counsel
for the Underwriter. The Operating Partnership shall furnish to the Underwriter
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Underwriter and counsel for the Underwriter shall
reasonably request.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and the Operating Partnership agree to indemnify and
hold harmless the Underwriter and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, against any losses, claims, damages or liabilities, joint or
several, to which the Underwriter or such controlling person may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon:
(i) any untrue statement or alleged untrue statement made by
the Company and the Operating Partnership in Section 2 of this
Agreement,
(ii) any untrue statement or alleged untrue statement of any
material fact contained in (A) the Registration Statement or any
amendment thereto or any Preliminary Prospectus, the Prospectus or
any Integrated Prospectus or any amendment or supplement thereto or
(B) any application or other document, or any amendment or
supplement thereto, executed by the Company or the Operating
Partnership or based upon written information furnished by or on
behalf of the Company or the Operating Partnership filed in any
jurisdiction in order to qualify the Securities under the securities
or blue sky laws thereof or filed with the Commission or any
securities association or securities exchange (each an
"Application"),
(iii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus or any Integrated Prospectus or any
-19-
amendment or supplement thereto, or any Application a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or
(iv) any untrue statement or alleged untrue statement of any
material fact contained in any audio or visual materials used in
connection with the marketing of the Securities, including, without
limitation, slides, videos, films and tape recordings,
and will reimburse, as incurred, the Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by the Underwriter or
such controlling person in connection with investigating, defending against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; PROVIDED, HOWEVER, that the Company and the
Operating Partnership will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
such registration statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus or any Integrated Prospectus or any amendment or
supplement thereto, or any Application in reliance upon and in conformity with
written information furnished to the Company or the Operating Partnership by the
Underwriter specifically for use therein. This indemnity agreement will be in
addition to any liability which the Company or the Operating Partnership may
otherwise have. The Company or the Operating Partnership will not, without the
prior written consent of the Underwriter, settle or compromise or consent to the
entry of any judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder (whether
or not the Underwriter or any person who controls the Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act is a party to
such claim, action, suit or proceeding), unless such settlement, compromise or
consent includes an unconditional release of the Underwriter and such
controlling persons from all liability arising out of such claim, action, suit
or proceeding.
(b) The Underwriter will indemnify and hold harmless the Company and
the Operating Partnership, each of its directors, each of its officers who
signed the Registration Statement, as amended at the date of this Agreement as
specified in Schedule 1 hereto, and each person, if any, who controls the
Company or the Operating Partnership within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act against any losses, claims, damages or
liabilities to which the Company, the Operating Partnership or any such
director, officer or controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, as amended at the date of this Agreement as specified in Schedule 1
hereto, any Preliminary Prospectus, the Prospectus or any Integrated Prospectus
or any amendment or supplement thereto, or any Application or (ii) the omission
or the alleged omission to state therein a material fact required to be stated
in the Registration Statement, as amended at the date of this Agreement as
specified in Schedule 1 hereto, any Preliminary Prospectus, the Prospectus or
any Integrated Prospectus or any amendment or supplement thereto, or any
Application or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company or the
Operating Partnership by the Underwriter specifically for use therein; and,
subject to the limitation set forth immediately preceding this clause, will
reimburse, as incurred, any legal or other expenses reasonably incurred by the
Company, the Operating Partnership or any such director, officer or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or any action in respect thereof. This indemnity agreement
will be in addition to any liability which the Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; PROVIDED, HOWEVER, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other
-20-
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or parties
and such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by such indemnified party
of counsel appointed to defend such action, the indemnifying party will not be
liable to such indemnified party under this Section 7 for any legal or other
expenses, other than reasonable costs of investigation, subsequently incurred by
such indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel) in any
one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
designated by the Underwriter in the case of paragraph (a) of this Section 7,
representing the indemnified parties under such paragraph (a) who are parties to
such action or actions) or (ii) the indemnifying party does not promptly retain
counsel satisfactory to the indemnified party or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. After such notice from the indemnifying party
to such indemnified party, the indemnifying party will not be liable for the
costs and expenses of any settlement of such action effected by such indemnified
party without the consent of the indemnifying party.
(d) In circumstances in which the indemnity agreement provided for
in the preceding paragraphs of this Section 7 is unavailable or insufficient,
for any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Securities or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Operating
Partnership on the one hand and the Underwriter on the other shall be deemed to
be in the same proportion as the total proceeds from the offering (before
deducting expenses) received by the Company or the Operating Partnership, as the
case may be, bear to the total underwriting discounts and commissions received
by the Underwriter. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Operating Partnership or
the Underwriter, the parties' relative intents, knowledge, access to information
and opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances. The Operating
Partnership and the Underwriter agree that it would not be equitable if the
amount of such contribution were determined by pro rata or per capita allocation
or by any other method of allocation that does not take into account the
equitable considerations referred to above in this paragraph (d).
Notwithstanding any other provision of this paragraph (d), the Underwriter shall
not be obligated to make contributions hereunder that in the aggregate exceed
the underwriting discounts and commissions set forth on the cover page of the
Prospectus, and no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this paragraph (d), each person, if any, who controls the Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Underwriter, and each director of the
Company, each partner of the Operating Partnership, each officer of the
Operating Partnership or the Company who signed the Registration Statement as
amended at the date of this Agreement as specified in Schedule 1 hereto and each
person, if any, who controls the Company or the Operating Partnership within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, shall have
the same rights to contribution as the Company and the Operating Partnership.
-21-
8. [Intentionally omitted].
9. SURVIVAL. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company and the Operating
Partnership, their officers and the Underwriter set forth in this Agreement or
made by or on behalf of them, respectively, pursuant to this Agreement shall
remain in full force and effect, regardless of (i) any investigation made by or
on behalf of the Operating Partnership, the Company, any of its officers or
directors, the Underwriter or any controlling person referred to in Section 7
hereof and (ii) delivery of and payment for the Securities. The respective
agreements, covenants, indemnities and other statements set forth in Sections 5
and 7 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
10. TERMINATION.
(a) This Agreement may be terminated with respect to the Securities
in the sole discretion of the Underwriter by notice to the Company and the
Operating Partnership given prior to the Closing Date in the event that the
Company or the Operating Partnership shall have failed, refused or been unable
to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder at or prior thereto or, if at or prior to the
Closing Date:
(i) the Operating Partnership or any of the Subsidiaries shall
have, in the sole judgment of the Underwriter, sustained any
material loss or interference with their respective businesses or
properties from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any labor dispute or
any legal or governmental proceeding or there shall have been any
material adverse change, or any development involving a prospective
material adverse change (including without limitation a change in
management or control of the Company, which includes the termination
of the employment of Xxxxxx X. Xxxx), in the condition (financial or
otherwise), business prospects, net worth or results of operations
of the Company, the Operating Partnership and the Subsidiaries,
except in each case as described in or contemplated by the
Prospectus (exclusive of any amendment or supplement thereto);
(ii) trading in the Company's Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or
trading in securities generally on the New York Stock Exchange shall
have been suspended or minimum or maximum prices shall have been
established on such exchange;
(iii) there shall have been any downgrading in the rating of
any debt securities or preferred stock of the Operating Partnership
or the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the
Act), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities or
preferred stock of the Operating Partnership or the Company (other
than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such
rating);
(iv) a banking moratorium shall have been declared by New York
or United States authorities; or
(v) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or (C) any other calamity or crisis or
material adverse change in general economic, political or financial
conditions having an effect on the U.S. financial markets that, in
the sole judgment of the Underwriter, makes it impractical or
inadvisable to proceed with the public
-22-
offering or the delivery of the Securities as contemplated by the
Registration Statement, as amended at the date of this Agreement as
specified in Schedule 1 hereto
(b) Termination of this Agreement pursuant to this Section 10 shall
be without liability of any party to any other party except as provided in
Section 9 hereof.
11. INFORMATION SUPPLIED BY UNDERWRITER. The statements set forth in
the third and fifth paragraphs under the heading "Plan of Distribution" in the
Prospectus Supplement (to the extent such statements relate to the Underwriter)
constitute the only information furnished by the Underwriter to the Operating
Partnership for the purposes of Sections 2(a), 2((b)) and 7((b)) hereof. The
Underwriter confirms that such statements (to such extent) are correct.
12. NOTICES. All communications hereunder shall be in writing and,
if sent to any of the Underwriter, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to First Union Securities, Inc.,
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 (Fax No.
000-000-0000), Attention: Debt Syndicate Desk; and if sent to the Operating
Partnership or the Company, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to the Operating Partnership at
00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx, 00000, Attention: Xxxxxx X. Xxxx.
13. SUCCESSORS. This Agreement shall inure to the benefit of and
shall be binding upon the Underwriter, the Operating Partnership, the Company
and their respective successors and legal representatives, and nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
other person any legal or equitable right, remedy or claim under or in respect
of this Agreement, or any provisions herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of such persons and for the benefit of no other person except
that (i) the indemnities of the Operating Partnership and the Company contained
in Section 7 of this Agreement shall also be for the benefit of any person or
persons who control the Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act and (ii) the indemnities of the Underwriter
contained in Section 7 of this Agreement shall also be for the benefit of the
directors of the Company, the officers of the Company who have signed the
Registration Statement as amended at the date of this Agreement as specified in
Schedule 1 hereto and any person or persons who control the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act. No purchaser
of Securities from the Underwriter shall be deemed a successor because of such
purchase.
14. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
15. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[signature page follows]
-23-
Very truly yours,
XXXX-XXXX REALTY CORPORATION
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
and General Counsel
XXXX-XXXX REALTY, L.P.
By: Xxxx-Xxxx Realty Corporation,
as general partner
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
and General Counsel
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
FIRST UNION SECURITIES, INC.
By: /s/ Xxxx X. Xxxxxx, III
-------------------------
Name: Xxxx X. Xxxxxx, III
Title: Director
-24-
SCHEDULE 1
DESCRIPTION OF SECURITIES; TERMS OF OFFERING
1. REGISTRATION STATEMENT:
File No. 333-57103
2. DATE OF UNDERWRITING AGREEMENT:
December 21, 2000
3. TITLE OF SECURITIES:
7.835% Notes due 2010 (the "Securities")
4. AGGREGATE AMOUNT OF SECURITIES:
$15,000,000
5. SECURITIES DOCUMENTS:
Indenture, to be dated as of March 16, 1999 (the "Original Indenture"),
between Xxxx-Xxxx Realty, L.P. and Wilmington Trust Company, as trustee
(the "Trustee") and the Third Supplemental Indenture, to be dated as of
December 21, 2000 (the "Supplemental Indenture" and together with the
Original Indenture, the "Indenture"), between Xxxx-Xxxx Realty, L.P. and
the Trustee.
6. PRICE TO PUBLIC:
100% of the principal amount of the Securities, plus accrued interest, if
any, from December 21, 2000.
7. PURCHASE PRICE BY UNDERWRITER:
99.375% of the principal amount of the Securities, plus accrued interest,
if any, from December 21, 2000.
8. SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Wire transfer of same day funds
9. TERMS OF SECURITIES:
Maturity: December 15, 2010
Optional Redemption: The Notes may be redeemed at any
time at the option of the Operating
Partnership, in whole or in
-1-
part, at a redemption price equal
to the sum of (i) the principal
amount of the Notes being redeemed
plus accrued interest thereon to
the redemption date and (ii) the
Make Whole Amount (as defined in
the Indenture), if any, with
respect to such Notes.
Interest Rate: 7.835%
Interest Payment Dates: Semi-annually on December 15 and
June 15 commencing June 15, 2001.
10. DELIVERY OF SECURITIES:
DTC on or about December 21, 2000
11. PRE-CLOSING LOCATION:
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx on December 20, 2000
12. CLOSING LOCATION:
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx on December 21, 2000
13. STOCK EXCHANGE LISTING
The Notes will not be listed on any national securities exchange.
-2-
SCHEDULE 2
Principal
Amount
UNDERWRITER OF SECURITIES PURCHASE PRICE
----------- --------------
First Union Securities, Inc......... $ 15,000,000 $ 14,906,250
============ ============
Total............................... $ 15,000,000 $ 14,906,250
